JUDGMENT Hon’ble Raj Mani Chauhan, J.—This writ petition under Article 226 of the Constitution of India has been filed by Lalani Pandey @ Vijay Shanker Pandey, S/o Late Ram Kumar Pandey, R/o Korwa, P.S. Saraini, District Raebereli for issuing a writ of certiorary to quash the impugned externment order dated 15.7.2010 passed by the District Magistrate, Raebareli (opposite party No. 3 which is contained in Annexure 2) as well as the impugned judgment and order dated 8.9.2010 passed by the Commissioner, Lucknow Division, Lucknow (opposite party No. 2 which is contained in Annexure 1) dismissing the appeal filed by the petitioner against the aforesaid externment order. 2. The relevant facts giving rise to the present writ petition may be briefly stated as under: The Additional District Magistrate (Administration), Raebareli on 16.11.2009 issued a notice to the petitioner under Section 3 of the U.P. Control of Goondas Act, 1970 (hereinafter referred to as the ‘Act’) with the allegation that on the basis of information received by him, it appeared that Lalani Pandey @ Vijay Shanker Pandey (petitioner), S/o Late Ram Kumar Pandey, R/o Korwa, P.S. Saraini, District Raebereli either commits offence himself or abets others to commit offences punishable under Chapter XV, XVI and XVIII of the Indian Penal Code. His general reputation is that he terrorises the people and is dangerous to the community. He operates his activity within the area of the district Raebareli. No person is ready to give evidence against him on account of his arduous activities. He is an accused in Crime No. 345/09, under Sections 452/323/504/506/324 IPC and 3 (1) (10) SC/ST Act which was registered on the written report of Kallu Pasi, S/o Gayadin Pasi, R/o Village Korwa, P.S. Saraini, District Raebareli. The Investigating Officer of the case found sufficient evidence against him consequently he submitted charge-sheet against him. Another case is registered against him at Crime No. 1029/09, under Sections 436/504/506/427 IPC and 3 (1) (10) SC/ST Act on the written report of Jhurakhan Pasi, S/o Sukhdin Pasi, R/o Katikaha, P.S. Saraini, District Raebareli The Investigating Officer found sufficient evidence against him consequently he submitted charge-sheet against him. 3. The petitioner by the said notice was called upon to furnish written explanation as to why an externment order be not passed against him under Section 3 (3) of the Act. 3. The petitioner by the said notice was called upon to furnish written explanation as to why an externment order be not passed against him under Section 3 (3) of the Act. The petitioner was served with the notice, he appeared before the learned Additional District Magistrate. He was allowed so many dates to file his written explanation but he could not file the same consequently the learned District Magistrate on the basis of materials available on record held him to be goonda and ordered for his externment for a period of six months by the impugned order dated 15.7.2010. The petitioner being aggrieved by the impugned order passed by the District Magistrate preferred an appeal under Section 6 of the Act before the learned Commissioner, Lucknow Division, Lucknow. The learned Commissioner, Lucknow Division, Lucknow found that the finding of the learned District Magistrate was based on documentary evidence, therefore, the impugned order passed by him did not suffer from any illegality consequently he dismissed the appeal by the impugned judgment and order dated 8.9.2010 which has given rise to the present writ petition. 4. Heard learned counsel for the petitioner and learned Additional Government Advocate for the State. 5. The submission of the learned counsel for the petitioner is two fold. The first submission of the learned counsel for the petitioner is that the petitioner was not given proper opportunity of hearing by the learned District Magistrate, therefore, the impugned order passed by him is against the principle of natural justice and is liable to be quashed. 6. The second submission of the learned counsel for the petitioner is that the word ‘goonda’ has been defined under the Act that a person can be treated to be goonda if he either by himself or as a member or as a leader of a gang habitually commits or attempt to commit or abets the commission of offences punishable under Section 153 or Section 153-B or Section 294 of the Indian Penal Code or under Chapter XV, XVI, XVII and XXII of the Indian Penal Code. As per defenition of word ‘goonda’ a person who is habitually involved in commission of the offences as mentioned above may be treated as ‘goonda’. The word ‘habitually’ means he by habit is involved in commission of such offences. As per defenition of word ‘goonda’ a person who is habitually involved in commission of the offences as mentioned above may be treated as ‘goonda’. The word ‘habitually’ means he by habit is involved in commission of such offences. One or two offence alleged to have been committed by the accused will not be sufficient to treat him as ‘goonda’. In this case, two criminal cases i.e. case Crime No. 345/09, under Sections 452/323/504/506/324 IPC and 3 (1) (10) SC/ST Act and case Crime No. 1029/09, under Sections 436/504/506/427 IPC and 3 (1) (10) SC/ST Act are said to have been registered against the accused for investigation in which the Investigating Officers are said to have submitted charge-sheet against the accused. 7. From a perusal of the first information report of these cases, it appears that these cases were registered by the police in pursuance to the order passed by the Magistrate on the application moved by the respective complainants under Section 156 (3) of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’). The complainants of these two cases had to move application before the concerned Magistrate when the case was not registered by the police. This fact goes to show that the accused was not involved in commission of the repeated offences by habit otherwise the police would have in its natural course registered the above cases against the accused. When the police did not register any case on the information of the complainants, the complainants approached to the learned Magistrate by moving applications under Section 156 (3) of the Code for direction to the S.O. of P.S. concerned to register and investigate the case which were allowed by the learned Magistrate. In fact, the complainants moved applications under Section 156 (3) of the Code before the concerned Magistrate for lodging F.I.R. on totally false grounds. The petitioner on the basis of these two cases cannot be held to be goonda within the meaning of Section 3 of the Act. The finding of the learned District Magistrate as well as the finding of the learned Commissioner to the effect that the petitioner is a ‘goonda’ is illegal and are liable to be quashed. The petitioner on the basis of these two cases cannot be held to be goonda within the meaning of Section 3 of the Act. The finding of the learned District Magistrate as well as the finding of the learned Commissioner to the effect that the petitioner is a ‘goonda’ is illegal and are liable to be quashed. The learned counsel for petitioner in support of his argument has placed reliance upon a case Shankar Ji Shukla v. Ayukt, Allahabad Mandal, Allahabad and others, 2005 (52) ACC 638, decided by this Court. 8. Sri Rajendra Kumar Dwivedi, the learned Additional Government Advocate opposed the writ petition and argued that from a perusal of the impugned order passed by the learned District Magistrate, it appears that the learned District Magistrate had allowed as many as 10 dates to the accused to furnish his written reply against the notice issued by him under Section 3 of the Act. The petitioner was allowed last opportunity to file his written reply by 7.7.2010 even then he did not file any reply, therefore, the learned District Magistrate had no option except to proceed against the petitioner in the absence of his written reply. Therefore, now it is not open to the petitioner to argue that impugned order has been passed by the learned District Magistrate without affording him proper opportunity of hearing. 9. The learned A.G.A. further submits that in counter affidavit filed by Awadhesh Kumar Awasthi, Sub-Inspector, P.S. Saraini, District Raebareli, it has been specifically stated that the petitioner has a criminal history of as many as 9 cases. It has also been specifically stated that the petitioner is an ill-reputed goonda. He has terror in the district, no person dares to give evidence against him. In this way the general nature of material allegations as required by Section 3 of the Act is there in the notice which is supported by the documentary evidence on record. Since the accused has criminal history of as many as nine cases, therefore, he falls within the purview of ‘goonda’ as defined under Section 2 (b) of the Act. In this way the general nature of material allegations as required by Section 3 of the Act is there in the notice which is supported by the documentary evidence on record. Since the accused has criminal history of as many as nine cases, therefore, he falls within the purview of ‘goonda’ as defined under Section 2 (b) of the Act. The finding of the learned District Magistrate as well as the finding of the learned Commissioner is based on documentary evidence, therefore, the impugned order passed by the learned District Magistrate, Raebareli and learned Commissioner, Lucknow Division, Lucknow do not suffer from any illegality which do not call for any interference. 10. I have given though consideration to the rival submissions advanced by learned counsel for the petitioner and Sri Dwivedi, learned A.G.A. as well as perused the materials available on record. 11. So far as the first submission of the learned counsel for the petitioner is concerned, from a perusal of the impugned order passed by the learned Additional District Magistrate, Raebareli, it appears that he had issued notice to the accused on 30.11.2009 under Section 3 of the Act to show cause as to why an externment order be not passed against him and he be not treated as ‘goonda’. The notice was served to the petitioner who appeared on 08.12.2009 before the learned District Magistrate through his counsel. His counsel instead of filing any written reply sought time for filing written reply on behalf of the accused. The accused appeared before the learned District Magistrate on 13.1.2010 and filed bail bonds to appear on future dates. From a perusal of the impugned order, it appears that the accused sought as many as 10 adjournments for filing written reply even then he did not file any written reply. At last he was allowed last opportunity to file his written reply by 7.7.2010 even then he did not file any written reply. In the circumstances, the learned District Magistrate had no option but to proceed with the case in the absence of written reply of the accused. Now it is not open to the petitioner to argue that he was not allowed proper opportunity to file his written reply as well as for hearing. In fact, the learned District Magistrate had allowed sufficient opportunity to the petitioner to file his written reply. Now it is not open to the petitioner to argue that he was not allowed proper opportunity to file his written reply as well as for hearing. In fact, the learned District Magistrate had allowed sufficient opportunity to the petitioner to file his written reply. When he did not file his written reply, the learned District Magistrate had no option except to proceed with the case on the basis of materials available on record. He, therefore, finally disposed of the case against the petitioner by the impugned order of externment. The impugned order, therefore, cannot be said to bad in the eye of law on the ground that the accused was not given proper opportunity of hearing. 12. So far as the second submission of the learned counsel for the petitioner is concerned, it has got force. 13. Whether the accused can be treated as ‘goonda’ or not? It will be necessary to consider the meaning of word ‘goonda’ as provided in the Act. Section 2 (b) of the Act defines the word ‘goonda’ as follows: 2 (b) ‘Goonda’ means a person who - (i) either by himself or as a member or leader of a gang, habitually commits or attempts to commit, or abets the commission of an offence punishable under Section 153 or Section 153-B or Section 294 of the Indian Penal Code or Chapter XV, Chapter XVI, Chapter XVII or Chapter XXII of the said Code; or (ii) has been convicted for an offence punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956; or (iii) has been convicted not less than thrice for an offence punishable under the U.P. Excise Act, 1910 or the Public Gambling Act, 1867 or Section 25, Section 27 or Section 29 of the Arms Act, 1959; or (iv) is generally reputed to be a person who is desperate and dangerous to the community; or (v) has been habitually passing indecent remarks or teasing women or girls; or (vi) is a tout; or (vii) is a house grabber. 14. In this case the accused has not been treated as ‘goonda’ on the grounds mentioned in clause 2 (b) (ii) to (vii) of the Act as referred above. He has been treated as goonda under clause 2 (b) (i) of the Act. 14. In this case the accused has not been treated as ‘goonda’ on the grounds mentioned in clause 2 (b) (ii) to (vii) of the Act as referred above. He has been treated as goonda under clause 2 (b) (i) of the Act. As per definition of goonda as contained in clause 2 (b) (i) of the Act, a person can be teated as goonda only when he is habitually involved in commission of offence as mentioned therein. The word goonda carries on the meaning that a person who by habit is involved to commit repeated offences as mentioned above will be treated as ‘goonda’. One or two criminal cases against a person will not be sufficient to hold him that he is habitually involved in commission of such offences and he is a ‘goonda’. 15. In the case of Shankar Ji Shukla v. Ayukt, Allahabad Mandal, Allahabad and others (supra) the word ‘habitually’ came for consideration before this Court. The Court relying on its previous judgment in the case of Imaran @ Abdul Qaddus Khan v. State of U.P. and others, 2000 (Suppl.) ACC 171 (All), as well as the case of Vijay Narain Singh v. State of Bihar and others, (1984) 3 SCC 14 , decided by the Hon’ble Apex Court held that a single or two Acts of the accused will not be sufficient to hold that he is habitually involved in commission of the offences referred in the Act. The relevant observation of the Hon’ble Court finds place in para 6 of the judgment which is being extracted below: “..... 6. The emphasis is on the work habitual and a single or two Acts after a long gap does not amount to the term ‘Habitually’. The expression ‘habitually’ means ‘repeatedly’ or ‘persistently’. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar Acts are necessary to justify an inference of habit. It connotes frequent commission of Acts or omissions of the same kind. The expression ‘habitually’ means ‘repeatedly’ or ‘persistently’. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar Acts are necessary to justify an inference of habit. It connotes frequent commission of Acts or omissions of the same kind. Because, the idea of ‘habit’ involves an element of persistence and a tendency to repeat the Acts or omissions of the same kind, if the Acts or omissions in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them, they cannot be treated as habitual ones. Learned counsel for the petitioner further relied on the case of Imaran @ Abdul Qaddus Khan v. State of U.P. and others. In Imran’s case (supra), the Court relied on the judgment of Hon’ble Supreme Court in the case of Vijay Narain Singh v. State of Bihar and others, for defining the term ‘Goonda’. It was further held in Imaran’s case (supra) that even the minority view which was taken in Vijay Narain’s case (supra) was that the word ‘habitually’ means ‘by force of habit’. From the facts found above I find that the petitioner is not a habitual offender and he cannot be brought under the term ‘Goonda’ as defined under the Act.........” 16. In this case, in counter affidavit filed by Awadhesh Kumar Awasthi, Sub-Inspector, P.S. Saraini, District Raebareli, it has been specifically stated that the petitioner has a criminal history of as many as 9 cases but in the impugned notice issued by the learned Additional District Magistrate, only two cases as referred above have been mentioned therein, therefore, the criminal history of rest cases cannot be a ground to treat the petitioner as goonda which do not find place in the impugned order. If the criminal history of those cases would have been mentioned in the impugned notice, they could be considered for holding the accused as goonda. Since only two criminal cases have been referred in the impugned notice issued by the learned Additional District Magistrate to the petitioner hence only those two cases cannot be considered to determine as to whether the petitioner is goonda. 17. From a perusal of the impugned notice issued by the Additional District Magistrate, Raebareli, it appears that two criminal cases are mentioned therein. 17. From a perusal of the impugned notice issued by the Additional District Magistrate, Raebareli, it appears that two criminal cases are mentioned therein. The first case is case Crime No. 345/09, under Sections 452/323/504/506/324 IPC and 3 (1) (10) SC/ST Act and the second case is case Crime No. 1029/09, under Sections 436/504/506/427 IPC and 3 (1) (10) SC/ST Act. From a perusal of the copy of the F.I.R. of these two cases, it appears that both the cases had been registered by the police in pursuant to the order passed by the Judicial Magistrate on the applications moved by the respective complainants under Section 156 (3) of the Code. It appears that the complainants of those cases had approached the police first and informed about the commission of the offence and when no F.I.R. was registered by the police then they had to move applications under Section 156 (3) of the Code before the concerned Magistrate for a direction to the S.O. of Police Station concerned to register and investigate the case against the accused. As per version of the police, the accused is a man of goonda nature and no one dares to be witness against him. If the police had got such impression against the accused, it was expected that it should have registered a case against the accused when the complainants approached before it for registration of the F.I.R. but the police did not register the case. 18. In the case of Shankar Ji Shukla v. Ayukt, Allahabad Mandal, Allahabad and others (supra), it has been held that a person cannot be held to be ‘goonda’ only on the basis of one or two acts, a person can be held to be goonda only when he is in habit of committing repeated offences. 19. In this case, only two criminal cases have been shown against the accused which too were registered by the police in pursuant to the order passed by the Judicial Magistrate on the applications moved by the respective complainants under Section 156 (3) of the Code. The petitioner on the basis of these two cases cannot be said to be habitually involved in commission of offences as defined under Section 2 (1) (b) of the Act. He, therefore, cannot be held to be goonda. 20. The petitioner on the basis of these two cases cannot be said to be habitually involved in commission of offences as defined under Section 2 (1) (b) of the Act. He, therefore, cannot be held to be goonda. 20. From a perusal of the impugned judgment passed by the learned District Magistrate as well as the appellate order passed by the learned Commissioner, it appears that both the authorities fail to consider the requirement of Section 2 (1) (b) of the Act for declaring the petitioner as goonda. The impugned order passed by the learned District Magistrate, Raebareli, as well as the impugned order passed by the learned Divisional Commissioner, Lucknow, are bad in the eye of law and liable to be quashed and the writ petition deserves to succeed. 21. The writ petition is, therefore, allowed and the impugned order of externment of the petitioner dated 15.7.2010 passed by the District Magistrate, Raebareli as well as the impugned judgment and order dated 8.9.2010 passed by the Commissioner, Lucknow Division, Lucknow are hereby quashed. —————